Rule 35(b) Statement

The panel decision stands in significant tension with the Supreme Court’s decisions in Crawford v. Metropolitan Government of Nashville, 555 U.S. 271 (2009), Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and this Court’s decision in Howard v. Winter, 446 F.3d 559 (4th Cir. 2006). Consideration by the full court is therefore necessary to secure consistency with governing precedent.

Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and other federal laws prohibiting employment discrimination. The Commission is particularly interested in seeing that Title VII is enforced in a way that minimizes the number of violations that occur in the workplace. This case addresses when Title VII should protect employees against retaliation for reporting workplace harassment to their employers. Employers cannot effectively fulfill their duty to prevent hostile work environments without such employee complaints. The Commission accordingly offers its views.

Statement of the Issues

1. Should Title VII protect an employee from retaliation for informing her employer of racially offensive workplace conduct that, if repeated often enough, would create a hostile work environment?

2. If a court rules that the plaintiff has not offered sufficient evidence to establish a hostile-work-environment claim, does that ruling necessarily preclude the plaintiff from showing that she reasonably believed that the harassment she complained about was unlawful?

The Panel Decision

Addressing Liberto’s hostile-work-environment claim first, the Court acknowledged that “porch monkey” is “indeed racially derogatory and highly offensive,” dec. at 11, but it ruled that the harassment was insufficiently severe or pervasive. Id. The Court stressed that Clubb used the epithet only two times in conversations addressing a single incident, and that she was not Liberto’s supervisor or manager. Id. at 11–13.

In addressing Liberto’s retaliation claim, the panel majority applied the rule from Jordan v. Alternative Resources Corp., 458 F.3d 332, 338–41 (4th Cir. 2006), that an employee who reports offensive conduct is not protected from retaliation unless she has an objectively reasonable belief that the conduct she is reporting has created an actionable hostile work environment or she has a basis for concluding it is likely to create such an environment sometime soon. Dec. at 18. The panel majority decided that Liberto could not reasonably have believed that Clubb’s conduct created an actionable hostile work environment. It relied again on the fact that Liberto alleged only two uses of the epithet in two days by a co-worker and that there was no evidence of a “plan” to create such an environment. Id. at 18–19. The panel majority buttressed this ruling by stating that its earlier decision (on the merits of Liberto’s hostile-work-environment claim) dictated a finding that she could not have reasonably believed a hostile work environment existed. Id. at 19–20.

Chief Judge Traxler dissented as to Liberto’s retaliation claim. He disagreed with the panel majority that dismissal of her hostile-work-environment claim “necessarily resolves the retaliation claim as well.” Dec. at 28. He argued that the harassment Liberto suffered was more serious than the harassment in Jordan, id. at 29–30, and he agreed with Judge King (who had dissented in Jordan) that the Jordan rule leaves harassment victims facing an impermissible catch-22 between enduring the harassment without complaining and complaining without any protection against retaliation. Id. at 30–31 (quoting Jordan, 458 F.3d at 349, 355–56 (King, J., dissenting)).

Argument

I. Title VII’s anti-retaliation provision should be construed to protect employees who complain about racially offensive conduct that, if repeated often enough, would result in an actionable hostile work environment.

This Court in Jordan held that an employee who reported offensive workplace conduct to his employer is not protected against retaliation unless he had, at the time, an objectively reasonable belief that the offensive conduct he was reporting was severe or pervasive enough to create an actionable hostile work environment or that a plan to create such an environment was being implemented. Jordan, 458 F.3d at 338–41. This significant restriction on Title VII’s protection against retaliation conflicts with the duty that employees have under Title VII to avoid or minimize their damages and obstructs the process that the Supreme Court has prescribed to enable employers to fulfill their duty to protect their employees from hostile work environments. The Commission therefore urges this Court to reconsider the rule adopted in Jordan and hold that employees engage in protected opposition for retaliation purposes if they complain about racially offensive conduct that would create a hostile work environment if repeated often enough.

A. Victims of harassment have a duty to report the harassment to their employers before the harassment creates a hostile work environment.

Harassment victims, like tort victims, have a duty to avoid or minimize damages, and that means they have a duty to report racially offensive conduct before it becomes actionable. The Supreme Court made this duty clear in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Title VII, the Court noted, “borrows from tort law the avoidable consequences doctrine.” Ellerth, 524 U.S. at 764. A harassment victim therefore “has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize the damages’ that result from violations of the statute.” Faragher, 524 U.S. at 806. The only way she can avoid those damages is to report the harassment to the employer before it becomes actionable. Indeed, she cannot recover damages that she could have avoided had she reported the harassment earlier. Id. at 806–07 (“If the plaintiff unreasonably failed to avail herself of the employer’s preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so.”).

Faragher and Ellerth involved harassment by supervisors, but a victim of co-worker harassment has the same duty to alert the employer to the harassment so the employer can address it. Howard v. Winter, 446 F.3d 559, 567 (4th Cir. 2006) (“‘[T]he law against harassment is not self-enforcing and an employer cannot be expected to correct [co-worker] harassment unless the employee makes a concerted effort to inform the employer that a problem exists.’”). Since harassment victims have a duty to avoid damages by reporting the harassment before it becomes actionable, § 704(a) should be interpreted to protect such complaints. 42 U.S.C. § 2000e-3(a).

Conversely, employees have no duty to endure harassment silently until they can form an objectively reasonable belief that an actionable hostile environment is present or imminent, and neither of Title VII’s principal objectives—preventing discrimination and making victims whole—is served by requiring them to do so. And by depriving such employees of protection from retaliation, the Jordan rule undermines these principles. As Judge King said in his dissent in Jordan, the Jordan rule leaves victims of harassment in a “catch-22” that violates Title VII, forced either to report the harassment with no protection against retaliation or to endure the harassment without asking the employer to correct it. Jordan, 458 F.3d at 355; see also dec. at 30–31 (agreeing with Judge King in Jordan that the Jordan rule leaves harassment victims in a catch-22 and refusing to accept “that an employee in circumstances like these can be forced to choose between her job and her dignity”) (Traxler, Ch. J., dissenting). The Supreme Court expressed the same concern in Crawford v. Metropolitan Government of Nashville, 555 U.S. 271, 279 (2009), when it stated that § 704(a) should not be interpreted to leave employees in a catch-22 between not reporting harassment and reporting harassment with no protection against retaliation.

B. To serve Title VII’s primary purpose of preventing unlawful discrimination, harassment victims must report racially offensive conduct before it becomes actionable.

The “‘primary objective’” of Title VII “is not to provide redress but to avoid harm.” Faragher, 524 U.S. at 805–06. Employers have a duty to prevent and avoid violations of Title VII by supervisors. Id. at 806. Similarly, if employers do not address co-worker harassment they know about or should have known about, they can be held liable under a negligence theory. Howard, 446 F.3d at 567. But in either case employers often cannot prevent hostile work environments from taking place unless employees alert them to the harassing conduct that, if not corrected, will create the hostile work environment.

Employee complaints about racially offensive conduct that is not yet actionable are therefore essential to enable employers to avoid violations. “If Title VII’s prohibitions against sexual harassment are to be effective,” this Court has acknowledged, “employees must report improper behavior to company officials.” Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001); see also Howard, 446 F.3d at 567 (“‘[A]n employer cannot be expected to correct [co-worker] harassment unless the employee makes a concerted effort to inform the employer that a problem exists.’”). The Supreme Court accordingly stated in Ellerth that “Title VII’s deterrent purposes” would be best served if employees “report harassing conduct before it becomes severe or pervasive.” 524 U.S. at 764 (emphasis added). Indeed, putting aside Liberto’s termination, this complaint-and-correction process apparently worked here as it should: Liberto complained about Clubb’s racially offensive conduct; the employer investigated her complaint and gave Clubb a written warning; and as far as the record reveals, there were no subsequent complaints about racially offensive conduct by Clubb.

In addition, it often happens that the harasser harasses more than one employee, but no one victim knows about (or has admissible evidence showing) all the instances of harassment. An employer trying to forestall actionable hostile work environments would want to know that several employees independently find the harasser’s conduct racially offensive. For this reason also, employees should be encouraged to report racially offensive conduct before it becomes actionable, and they should be protected from retaliation if they do so. As the Supreme Court has stated, “Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the [employee] cooperation upon which accomplishment of the Act’s primary objective depends.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

Under the “if repeated” standard, the district court erred in granting the hotel summary judgment on Liberto’s retaliation claim. Loudly and angrily calling a black person a porch monkey is racially offensive conduct that if repeated often enough would result in a hostile work environment. See White v. BFI Waste Servs., LLC, 375 F.3d 288, 297 (4th Cir. 2004) (finding sufficient evidence of a hostile environment where plaintiff’s supervisors repeatedly called him and other black employees “porch monkey” as well as “nigger,” “jigaboo,” and other racial slurs); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (“To suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.”); Tawwaab v. Virginia Linen Serv., Inc., 729 F. Supp. 2d 757, 776 (D. Md. 2010) (“[C]omparing an African-American to a monkey is a degrading and outrageous form of race-based harassment.”).

Clubb was not Liberto’s direct supervisor, but she was more powerful at the hotel than Liberto was, and she was a friend of the hotel’s owner. In the same brief and angry interactions in which Clubb called Liberto a porch monkey, she also threatened to get Liberto in trouble with the owner and threatened to “get” her, to “teach [her] a lesson,” and to “make [her] sorry.” Clubb also called Liberto a “little girl.” An employer interested in preventing hostile work environments would want to know about this type of conduct so it could be addressed and corrected. The opposition clause should therefore be interpreted to protect complaints like Liberto’s.

The “if repeated” standard would not turn Title VII into a civility code. Employees would not be protected when complaining about conduct that is trivial or only mildly annoying, but only when complaining about conduct that if repeated often enough would result in a hostile work environment. Moreover, they would be protected when complaining about offensive conduct only if the conduct was offensive because of its close linkage to one of the factors listed in the statute as a prohibited basis for discrimination, such as race or sex. If the harassment was based on some other factor, like a personality conflict, the employee’s complaint would not be protected.

II. The panel majority erred in ruling that its adverse decision on Liberto’s hostile-work-environment claim automatically precluded her from establishing her related retaliation claim.

The panel majority addressed Liberto’s hostile-work-environment claim first and ruled that she had not offered sufficient evidence to show that the harassment was severe or pervasive. Dec. at 11–13. The panel majority then addressed Liberto’s retaliation claim and ruled in part that its decision on the merits of her hostile-work-environment claim precluded her from having held an objectively reasonable belief that a hostile work environment was present or imminent:

In the circumstances of this case, if no objectively reasonable juror could have found the presence of a hostile work environment, as we today hold, it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.

Id. at 20. The panel majority erred in ruling that a decision finding insufficient admissible evidence of harassment to support a plaintiff’s hostile-work-environment claim compels a decision that the plaintiff, for purposes of her retaliation claim, could not have had an objectively reasonable belief that an actionable hostile work environment was present or imminent.

The problem with the panel majority’s reasoning is that it defeats the purpose of the reasonable-belief rule. Section 704(a) prohibits discrimination against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). This Court, like all the other courts of appeals, construes § 704(a) to protect employees who engaged in opposition activity even if the conduct they opposed was not actually unlawful—as long as they reasonably believed it was unlawful. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 187 n.1 (2005) (Thomas, J., dissenting) (citing cases from most of the other courts of appeals). Under the panel majority’s narrow construction, an employee who opposes a practice or conduct is protected against retaliation only if she can prove that the practice or conduct actually is unlawful.

The panel majority’s rule puts too heavy a burden on harassment victims because even courts sometimes have a difficult time drawing the line between unpleasant and unlawful conduct. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) (“not . . . a mathematically precise test”); id. at 24 (“not . . . a very clear standard”) (Scalia, J., concurring); Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (the line “may be difficult to discern”). The rule also ignores the difference between the decision jurors must make and the reasonable belief required of retaliation plaintiffs. Jurors must consider only admissible evidence and decide whether the plaintiff has established a violation of the statute by a preponderance of the evidence. An employee who engages in opposition activity must, in this Court’s view, reasonably believe that the conduct he is opposing is unlawful, but he is not rendering a verdict in a court of law, and he is not restricted, in forming that belief, to evidence that is admissible at trial.

The point of the reasonable-belief rule is to ensure that an employee who engages in opposition activity is protected against retaliation not only when the practice or conduct he opposed was unlawful, but also when he reasonably—albeit incorrectly—believed it was unlawful. Navy Fed. Credit Union, 424 F.3d at 406; Little v. United Techs., 103 F.3d 956, 960 (11th Cir. 1997) (reasonable-belief rule is broader than rule requiring an actual violation would be). But the panel majority’s rule eliminates that understanding of § 704(a). The panel majority said that if the plaintiff has not offered sufficient admissible evidence to show that the harassment constituted an actionable hostile work environment, any belief the plaintiff had that the harassment was unlawful cannot have been reasonable: that is, if the jury cannot find the harassment was unlawful, the plaintiff could not have reasonably believed it was. If the reasonable-belief rule is to serve its purpose, there must be cases where even though the evidence is not sufficient to establish that the conduct the plaintiff opposed was unlawful, the plaintiff’s belief that the conduct was unlawful was reasonable.

Conclusion

Accordingly, the Commission respectfully urges this Court to grant en banc review of the panel decision.